Big Air Quality Win for Enviros in 9th Circuit

(CN) – Federal regulators lacked “unbounded discretion” to waive new air-quality rules for a proposed natural gas-fired power plant in California’s San Joaquin Valley, the 9th Circuit ruled Tuesday. The Environmental Protection Agency (EPA) issued Avenal Power Center a Prevention of Significant Deterioration Permit in 2011 to build a 600-megawatt facility near the largely agricultural communities of Avenal, Huron and Kettleman City, Calif. The move followed several years of inaction by the agency in which it missed a one-year deadline to either grant or deny the permit that governs national ambient air quality standards (NAAQS). Prior to issuing the permit but after the one-year deadline had passed, the EPA issued more stringent national air-quality standards, inspiring Avenal Power to file a federal complaint in Washington, D.C. Avenal wanted the agency to grandfather a permit under the old guidelines that they said that the EPA would have done anyway had it met its one-year deadline. The EPA balked at first but later waived the new regulations and granted the permit, lauding the proposed plant as one of the “lowest emitting power plants of its kind,” the 9th Circuit noted in its Tuesday ruling. With the help of Earthjustice, a host of environmental groups opposed to the Avenal Energy Project, including the Greenaction for Health and Environmental Justice, Center for Biological Diversity, and El Pueblo para el Aire y Agua Limpio, brought their own challenge in 2013 before the 9th Circuit. Avenal Power intervened in the action as the EPA argued that it had the authority to waive the new rules, and thus was entitled to deference in the case, because the Clean Air Act is ambiguous as to what action the agency should take when new air-standards are announced after a deadline is missed. The environmental groups, which claim emissions from the plant will exacerbate already widespread respiratory health problems in the heavily polluted valley, countered that clearly states that the EPA must enforce the regulations in effect at the time the permit is issued. A unanimous appellate panel agreed with the plaintiffs on Tuesday, vacating the EPA’s decision and granting a petition for review. “EPA now claims the authority to waive the law’s requirements at will, without regard to the regulations it has passed, and without any precedential value one way or another for future parties,” Judge Jacqueline Nguyen wrote for the three-judge panel. “That unbounded discretion exceeds the agency’s authority. We cannot discern any ambiguity or conflict between the Clean Air Act’s enforcement requirements, and the statutory decision making deadline. And the statute does not permit EPA to waive current NAAQS … requirements whenever it finds it convenient to do so.” Nguyen added that the “Clean Air Act unambiguously requires Avenal Power to demonstrate that the Avenal Energy Project complies with the regulations in effect at the time the permit is issued. “Honoring the statute’s plain language and overriding purpose, we must send EPA and Avenal Power back to the drawing board,” she wrote. Paul Cort and George Torgun argued the case for Earthjustice. “EPA was willing to ignore the law to allow this project to go forward in one of the hardest hit communities in one of the most polluted regions in the country,” Cort said in an email. “It was a shameful decision. Today’s court ruling, that EPA is not free to waive statutory requirements that it finds inconvenient, is a great victory for this community and for the rule of law generally.” William Warne of DowneyBrand represented Avenal Power in the case. He has not returned a request for comment.